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Synopsis

The High Court of Meghalaya, recently dismissed the petitions filed by the Union of India/Assam Rifles and an Employee ruling that the period of absence should not be considered as "dies non," a term used to denote a day on which an individual cannot work or be paid. Instead, the court mandated that for the services not rendered during this period, it should be treated as "No Work No Pay."

The Assam Rifles were seeking an extension of the deadline for completion of disciplinary proceedings against an employee for unauthorised absence from service for 373 days, while the employee pursued various reliefs against the Assam Rifles with regards his dismissal from service.

The court, presided over by Chief Justice S. Vaidyanathan and Justice W. Diengdoh, ruled that the Writ Petitions filed by both the Assam Rifles and the Employee are not maintainable. It was stated that “The Assam Rifles, instead of filing a Writ Petition for extension of time, should have filed a Miscellaneous Application with the said relief. Similarly, the Employee cannot approach this Court directly, seeking wages etc., without exhausting his remedy available before the Central Administrative Tribunal (CAT).”

The case involved two Writ Petitions, one filed by the Union of India/Assam Rifles and another filed by the respondent/Employee. The Union of India/Assam Rifles sought an extension of time for disciplinary proceedings against the Employee until August 31, 2024, as directed by the court in a previous order dated March 22, 2022.

The respondent/Employee in W.P(C) No.1 of 2024 filed the petition before the learned Single Judge with several requests:

a) To set aside and quash the improper disciplinary proceedings ordered on August 22, 2022, and grant all consequential benefits.

b) To forbear/recall/withdraw/stay the disciplinary proceedings and grant consequential benefits.

c) To direct the Director General, Assam Rifles, to consider a representation dated November 9, 2023, and provide a speaking order within a stipulated timeframe.

d) To direct the respondent authorities to prepare fresh pay fixation according to the petitioner's entitlements.

e) To direct the respondent authorities to release arrear payments from March 26, 2016, to July 31, 2022.

f) To direct compliance with the court's order dated March 22, 2022, in W.P(C) No.444 of 2020.

As both Writ Petitions pertained to the same issue, the court ordered their consolidation for joint disposal. For clarity, the parties are referred to as "Assam Rifles" and "Employee."

The Employee claimed to have joined the Assam Rifles on June 26, 2000, as a Hindi Typist and cited personal reasons for his absence, including his daughter's sudden ailment and his own medical condition, which led to a prolonged absence of 373 days. The Assam Rifles alleged that the Employee admitted guilt upon receiving the charge sheet, leading to a decision to remove him from service, effective March 25, 2016, with recovery of pecuniary losses caused by his absence.

The Assam Rifles contended that the Employee appealed against the order of removal from service to the Secretary, Ministry of Home Affairs, who serves as the Appellate Authority. Additionally, the Employee filed an Original Application (No.456 of 2016) before the Central Administrative Tribunal (CAT), Guwahati Bench, seeking to set aside the order and secure his reinstatement with consequential benefits. The CAT, Guwahati Bench, disposed of the application on March 15, 2019, directing the reinstatement of the Employee with immediate effect and settlement of his absence period through granted leave.

Subsequently, the Assam Rifles initiated a writ petition before the High Court in 2020, seeking clarification on the disciplinary proceedings. The High Court's order, dated March 22, 2022, modified the previous tribunal's decision, allowing the Assam Rifles to continue the proceedings from the stage of the Employee's response to the charges. The court stipulated a deadline of August 31, 2022, for the completion of the inquiry.

The Employee resumed work on May 20, 2022, following the court's directive. However, the Assam Rifles initiated disciplinary proceedings against him for the unauthorised absence of 373 days.

During the court proceedings, the Assam Rifles proposed a punishment of stoppage of increment for three years without cumulative effect for the Employee, who currently holds a non-sensitive post.

The court noted the Employee's past instances of absence from duty, spanning from 2007 to 2014, as detailed in Paragraph No. 13 of the Writ affidavit. While the Assam Rifles labeled the Employee as a habitual offender, no disciplinary action had been initiated for the absences from 2007 to 2012, as documented in the affidavit. The Employee did not dispute the leave taken during this period but provided an explanation only for the 373-day absence.

The court emphasised that both the Writ Petitions filed by the Assam Rifles and the Employee were not maintainable. The Assam Rifles should have filed a Miscellaneous Application for an extension of time instead of a Writ Petition, while the Employee should have exhausted remedies available before the Central Administrative Tribunal (CAT).

The court noted that the learned counsel for the Employee submitted that the Employee is willing to accept the proposed punishment of stoppage of increment for three years without cumulative effect. However, the Employee's concern was regarding the proper fixation of pay and other monetary benefits.The Assam Rifles assured the court that they would impose the specified punishment and subsequently extend the appropriate fixation of pay and other monetary benefits to the Employee.

The county highlighted that although the Employee did not provide documentation regarding his daughter's illness, and his absence from duty was established, he had already been reinstated in service as per the court's orders. Therefore, “it is expected that the Employee shall discharge his work without going on leave and without proper permission, as has been done earlier.” The court warned that any future absence or misconduct would result in the Employee's past absences being treated as part of his record, potentially leading to major disciplinary action by the Assam Rifles.

The court further elucidated that its modification of the punishment did not make the Writ Petitions maintainable. However, due to the consensus reached between the parties and to avoid further mental distress, the court molded the relief. “Had the parties not consented for amicable solution, this Court would have definitely dismissed the W.P(C) No.1 of 2024 (employee’s petition), giving liberty to the Department to proceed with the enquiry, which may ultimately end in dismissal of the employee, as the duration of his absence is huge,” the court remarked.

It clarified that “the period of his (employee’s) absence is not treated as dies non and for the services not rendered, the period will have to be treated as “No Work No Pay”.”

Ultimately, both the writ petitions (W.P(C) No.28 of 2024 and W.P(C) No.1 of 2024) were dismissed.

 

Cause Title: Union of India v Dharamvir Singh